Lefavour v. Yandes

2 Blackf. 240 | Ind. | 1829

Scott, J.

An action was brought in the name' of Lefavour and Shryock against Yandes and Wilson, for work and labour in erecting a mil]. The defendants introduced evidence to prove that Shryock, one of the plaintiffs, disclaimed the action, and acknowledged that he had received satisfaction in full for his part of the labour, and that an agreement had been made, by and between the plaintiffs and the defendants, subsequently fo the completion of the work, that the defendants 'were to pay each of the partners his part severally. On this evidence the Court instructed'the jury, ffthat if there was an acknowledgjnent by one qf the partners, after the dissolution of the partnership, that an agreement was made by the parties, subsequently to the completion of the work, that the defendants were to arr.ange, satisfy, and pay each of the plaintiffs, as they could agree with each of them severally; and that they did accordingly pay one of the partners .in full fpr his part; the other partner rnust bring a separate suit for his part.” To this instruction the plaintiffs excepted,"and their bill of exceptions is spread on the record.

Had the defendants proved such an agreement by a disinterested witness, or other legal proof, they might have defeated ,an action in the partnership name; but the objection here is to 'the kind of proof which is introduced to establish the agreement. Had Lefavour brought his action separately for his part of the claim, proof of ShryoclJs acknowledgment would have been insufficient to show the separation of interest; and the reason is equally strong, that it should not have been received to defeat an action in the partnership name. On this ground, we think the judgment for the defendants in the Circuit Court is erroneous. Several other exceptions were taken in the course of the trial below, which need not now be noticed. From a view of the whole case, we are of opinion theft the action in the name of the partners should be sustained. Shryock's admissions are admissible to prove the payment made to himself but not to change the contract ⁽¹⁾.

Brown, for the appellants. Fletcher and Gregg, for the appellees. Per Curiam.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.

(1) The declarations of one partner, as to the payment subsequently to a dissolution of a debt due to the partnership, are admissible against the other partner. Russell & Mylne, 191, per Brougham, Chancellor.